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Massachusetts Appeals Court Rules on Homeowners’ Rights to Challenge Mortgage Assignments


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In the case, Sullivan v. Kondaur Capital, the court affirmed that even though homeowners are not parties to the contracts assigning their mortgages, homeowners nevertheless have the right to challenge assignments that are invalid.

Because of this right, a mortgage assignment showing the mortgage was assigned to the incorrect party could be challenged.

The mortgage had been assigned at twice, from MERS, to Saxon Mortgage, to Kondaur Capital. But the final assignment mistakenly said that it was being assigned from MERS to Kondaur, rather than from Saxon to Kondaur.

Even though, as the court observed, the name on the assignment may have been due to a scrivener’s error, the homeowner’s case challenging the foreclosure should not be dismissed.

The court did, however, affirm the lower court’s dismissal of another wrongful-foreclosure claim. Under the holding from the Supreme Judicial Court’s earlier decision in Eaton, the mortgage and note did not have to be reunited before foreclosure.

Concluding by quoting the concurring decision in the Ibanez case, the Massachusetts Supreme Court wrote that “what is surprising about these cases is … the utter carelessness with which the foreclosing lenders documented the titles to their assets.”

The case is available here: Sullivan v. Kondaur Capital.

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